Introduction Workers compensation authorities and organisations in Australia... 4

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3 Introduction... 4 Workers compensation authorities and organisations in Australia... 4 Operations and assistance available within the Queensland workers compensation scheme... 8 Claims process flow chart Workers compensation legislation Other relevant legislation Extracts from workers compensation legislation in Queensland Sources of further information relating to relevant Commonwealth, State and Territory Acts, regulations and codes of practice Workers Compensation & Rehabilitation Research and Information Workers compensation and other regulatory reporting requirements Dispute resolution processes within the workers compensation industry sector Relevant stakeholders within the workers compensation industry in Queensland Terms used to cover the different types of injuries suffered by workers Impact of injury on injured workers and employers The injury management process and the roles and responsibilities of stakeholders Setting up a workplace rehabilitation program Six key stages in return to work Referral process for treatment and rehabilitation services Providing feedback to stakeholders Communication with stakeholders The consultation and negotiation process Appendix 1 Abbreviations used in Queensland Appendix 2 Glossary of terms used in Queensland Assessment FNSWCMP303A: Work within the workers compensation industry sector of 96

4 Introduction This unit of competency forms part of the nationally accredited course 30782QLD Course in functioning as a rehabilitation and return to work coordinator. The assessment for this unit will include some questions and answers, a case-study and participation in a role play. Workers compensation authorities and organisations in Australia Currently every state and territory in Australia has its own workers compensation scheme. The following is a list of organisations and their functions in the various states. New South Wales WorkCover NSW WorkCover NSW administers and enforces compliance with occupational health and safety (OHS), injury management, return to work and workers compensation legislation, and manages the workers compensation system. WorkCover NSW's main statutory function is to administer the following legislation: Acts: Occupational Health and Safety Act 2000 Explosives Act 2003 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 Workers Compensation (Dust Diseases) Act 1942 Sporting Injuries Insurance Act 1978 Rural Workers Accommodation Act 1969 Regulations and codes of practice under these Acts, including: OHS Regulation 2001 Dangerous Goods Regulation 2005 Explosives Regulation 2005 For further information visit the website at: Australian Capital Territory ACT WorkCover General information about WorkCover. WorkCover administers, implements and enforces legislation covering occupational health and safety, workers compensation, dangerous substances and labour regulation. WorkCover provides information and advice, and enforces the legislation they administer. ACT WorkCover is also the government agency responsible for the administration of the Occupational Health and Safety Act 1989, Dangerous Substances Act 2004, Scaffolding and Lifts Act 1912, and Machinery Act 1949.For further information visit the website at 4 of 96

5 Tasmania Workplace Standards Tasmania In order to improve the standard of workplaces and safety in the community, Workplace Standards Tasmania administers many of the laws that regulate business in Tasmania, including: Building Act 2000 Dangerous Goods Act 1998 Industrial relations Act 1984 Long Service Leave Act 1976 Workers Rehabilitation and Compensation Act 1988 Workplace Health and Safety Act 1995 For further information visit the website at Workplace Standards Tasmania at Northern Territory NT Worksafe NT WorkSafe is the administrative and regulatory arm of the Northern Territory Work Health Authority - the statutory body established under the Workplace Health and Safety Act. NT WorkSafe is responsible for the Territory-wide regulation of occupational health and safety, dangerous goods, electrical safety, and rehabilitation and workers' compensation. For more information visit the website at Victoria Victorian WorkCover Authority, WorkSafe Victoria is the manager of Victoria's workplace safety system. Broadly, the responsibilities of WorkSafe are to: help avoid workplace injuries occurring enforce Victoria's occupational health and safety laws provide reasonably priced workplace injury insurance for employers help injured workers back into the workforce manage the workers' compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices. For more information visit the website at South Australia WorkCover SA WorkCover SA is an employer-funded statutory authority (constituted under the WorkCover Corporation Act 1994) with a Board of Directors appointed by the Governor of South Australia. South Australia has a no-fault workers rehabilitation and compensation scheme established under the Workers Rehabilitation and Compensation Act The purpose of the scheme is to provide protection to workers and employers in the event of workplace injury. For more information visit the website at 5 of 96

6 Western Australia WorkCover WA WorkCover WA is the statutory authority responsible for administering the Workers' Compensation and Injury Management Act 1981 (the Act) on behalf of the state. WorkCover WA achieves this through the regulation and administration of the Workers Compensation and Injury Management Act 1981 (the Act), provision of policy advice to government and maintenance of stakeholder relationships. WorkCover WA is funded through an annual levy on premiums paid by employers to insurers approved to underwrite workers compensation insurance in Western Australia, and also by approved self-insurers. The legislation WorkCover WA administers includes: The Workers Compensation and Injury Management Act 1981; The Employers Indemnity Supplementation Fund Act 1980; The Workers Compensation and Injury Management (Acts of Terrorism) Act 2001; The Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986; and The Employers Indemnity Policies (Premium Rates) Act For more information visit the website at Queensland WorkCover Queensland WorkCover Queensland is a statutory body which provides and manages workers compensation insurance in Queensland. It is self-funding with income obtained from premiums paid by employers and returns on invested funds. WorkCover Queensland is governed by the Workers Compensation and Rehabilitation Act 2003 (the Act). A WorkCover Queensland accident insurance policy covers injured workers for their lost wages and medical costs for a workplace accident, and covers employers against these costs and possible common law claims. The Workers Compensation and Rehabilitation Act 2003 states that every Queensland employer, unless a licensed self-insurer, must have a workers compensation policy with WorkCover Queensland. WorkCover manages approximately 88% of all workers compensation claims, with self-insurers accounting for the remaining 12%. Under the Act, employers, workers and insurers are obliged to participate in rehabilitation. These obligations include offering suitable duties and graduated return to work programs as appropriate. Treating medical practitioner approval is required for these programs and workers must be consulted in the development of their suitable duties programs. The key focus of workplace rehabilitation is on a prompt and effective return to work for injured workers achieved through working with the injured worker, the employer, and medical and allied health providers to help rehabilitate the injured worker so they can return to work quickly and safely. 6 of 96

7 Self-insured employers A number of large employers in Queensland are self-insured for workers compensation. This means that they take on some of the functions and powers of WorkCover Queensland and are responsible for managing liability for claims for compensation by injured workers including common law or damages claims. Self-insured employers undergo a rigorous assessment process before they are issued with a selfinsurance licence. They must meet certain financial and corporate standards to gain a licence. Self-insured employers are subject to regular performance monitoring and re-assessment of their licence every four years. Workers employed by a self-insured employer should lodge a claim for compensation directly with their employer. For a list of self-insured employers see the Q-COMP website at Regulation The Queensland workers compensation industry is independently regulated by Q-COMP which is funded by contributions from insurers. Q-COMP is responsible for monitoring insurer performance and compliance across the industry, deciding self-insurance applications, reviewing insurer decisions, and administering medical assessment tribunals. Unlike some other WorkCover authorities, WorkCover Queensland is not responsible for workplace health and safety regulation. In Queensland, the Workplace Health and Safety division of the Department of Employment and Industrial Relations oversees all workplace health and safety. For more information visit the website at ComCare Comcare is a Commonwealth statutory authority established under: the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and covered by the Commonwealth Authorities and Companies Act 1997 (CAC Act). Comcare administers: the Commonwealth's workers' compensation scheme under the SRC Act; and the Occupational Health and Safety Act 1991 (OHS Act). Comcare also provides secretariat, policy and legislative support to the Seafarers' Safety, Rehabilitation and Compensation Authority in administering: the Seafarers Rehabilitation and Compensation Act 1992; the Occupational Health and Safety (Maritime Industry) Act 1993; the Seafarers Rehabilitation and Compensation Levy Act 1992;and the Seafarers Rehabilitation and Compensation Levy Collection Act Seacare SeaCare is a national scheme of occupational health and safety, rehabilitation and workers compensation arrangements which applies to certain seafaring employees. The scheme is overseen by the Seafarers Safety, Rehabilitation and Compensation Authority 7 of 96

8 otherwise known as the Seacare Authority. The Seacare Authority oversees the operation of the: Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) which establishes a workers' compensation and rehabilitation scheme for seafarers employed on certain ships engaged in trade or commerce within a Territory, interstate or overseas, and on other vessels declared by the Australian Maritime Safety Authority; Occupational Health and Safety (Maritime Industry) Act 1993 (OHS (MI) Act) which provides an OHS regime for seafarers on vessels as above and offshoreindustry mobile units engaged in trade or commerce within a Territory, interstateor overseas. The Authority also administers Regulations made under these Acts. Operations and assistance available within the Queensland workers compensation scheme Scheme structure in Queensland The Queensland workers compensation system is a system of compulsory (statutory based) insurance. The scheme works to encourage early return to work and ensures that injured workers receive entitlements and incentives to return to work. It is funded by employer paid insurance premiums or self insurance levies. The relevant workers compensation authorities in Queensland are discussed below. 1. Department of Employment and Industrial Relations In Queensland, workers compensation policy and legislation is developed by the Department of Employment and Industrial Relations, the scheme is regulated by Q-COMP the workers compensation regulatory authority, and premium and claims are managed by WorkCover Queensland. For further information phone the Department of Employment and Industrial Relation on or visit their website at 2. Workplace Health and Safety Workplace Health and Safety Queensland, a division of the Department of Employment and Industrial Relations, is the body responsible for workplace health and safety in Queensland. For further information phone the Department of Employment and Industrial Relations on or visit their website at 3. Q-COMP The Workers Compensation and Regulatory Authority The primary function of Q-COMP is to regulate the Workers Compensation Scheme. As the regulator, Q-COMP s functions include the following: monitoring the compliance and performance of insurers under this Act deciding applications relating to self-insurance undertaking reviews of insurers decisions and managing appeals supporting the efficient administration of medical assessment tribunals undertaking workplace rehabilitation accreditation and compliance activities providing rehabilitation advisory services 8 of 96

9 providing a complaints service in relation to Q-COMP s role and functions maintaining a scheme wide data base promoting education about the scheme. For further information contact Q-COMP on telephone or visit the website at 4. Self-insured employers Some Queensland workplaces are self-insured. Self-insured employers take on liability and responsibility for insuring their workers and managing claims for workplace injury. A list of selfinsured employers can be found on the Q-COMP website at 5. WorkCover Queensland WorkCover Queensland is the major insurer and directly manages the largest proportion of claims within the Queensland workers compensation scheme. WorkCover provides insurance to employers to cover them against claims by injured workers for compensation for work related injuries. They also provide insurance to employers in the event a worker lodges a common law or damages claim for negligence by the employer. A worker will receive workers compensation benefits when the insurer (WorkCover Queensland or a self-insured employer) accepts the worker s application for compensation. A worker can lodge an application by: 1. Sending an application for compensation form and a workers compensation medical certificate (insurer copy) to WorkCover or their self-insured employer. A tax file number will be required if the worker has time off work. 2. Phone WorkCover on to lodge a claim by telephone. 3. Log on to to lodge a claim online. 4. Lodge the application with their employer who forwards it to WorkCover or the selfinsurance unit along with the employer report. 9 of 96

10 Claims process flow chart Injury occurs Injured person seeks medical treatment. Doctor issues worker s compensation medical certificate. Employer develops suitable duties plan if worker has capacity, and medical certificate provides enough information. Injured person completes application for compensation. Employer lodges employer Report. Worker lodges claim with insurer. Employer monitors worker and liaises with insurer to advise re: suitable duties and wages to be paid for hours worked. Insurer decides claim can take up to 20 working days. Employer liaises with insurer and can ask for support if the case is complex. Insurer continues to manage overall coordination of claim and return to work. Employer continues to manage return to work at the workplace and liaise with insurer as necessary. Claim is finalised and worker returns to work. 10 of 96

11 The process for determining whether an application for compensation is to be accepted or declined under the Act is sometimes referred to as determination of liability. Questions the insurer must answer in order to determine liability include: Liability determination Is the person a worker as defined under the Act? Has the worker suffered an injury as defined under the Act? Did the injury arise out of or in the course of employment as defined under the Act? Is employment a significant contributing factor to the injury? Do any of the exclusion provisions under the Act apply? Note: injury can include an aggravation or exacerbation of a pre-existing condition. Does the worker have a capacity for work Weekly benefit payments to injured workers are based on their capacity for work. Work capacity is decided by the worker s treating medical practitioner based on the worker s medical status and is documented on the medical certificate. Total incapacity for work means that due to the severity of their injury or disease, the worker is not only unable to work in the pre-injury job, but is unable to work in any incapacity. Partial incapacity for work means that the worker is able to participate in some work tasks that are appropriate to their functional state. Stable and stationary In order to decide ongoing liability or to cease a claim, the insurer will first assess whether an injury is stable and stationary. A condition is referred to as stable and stationary when the condition is not likely to improve with further medical or surgical treatment over the next 12 months. This suggests that the condition has reached maximum medical improvement. Once this occurs, although the worker may be unable to return to their job, the claim may be ceased by the insurer. The decision to cease is therefore a medical and liability based decision rather than an employment related decision. For further information contact WorkCover Qld on or visit their website at WorkCover Queensland can be contacted for information on: 1. workers compensation insurance 2. common law or damages insurance 3. premium calculation and payment 4. whether a person is a worker 5. lodging claims for workers compensation 6. discussing issues an employer may have about claims lodged by a worker 7. advice on whether a claim has been accepted 8. progress reports 9. approval of treatment and services for injured workers 10. calculating wages to be paid to workers during the course of their claim 11. coordination of the overall return to work plan 12. developing suitable duties programs 13. engaging a rehabilitation service provider 14. employer claims history and statistics Time limit on applying for compensation If a worker has been injured at work, they are entitled to lodge an application for compensation with WorkCover Queensland or with their employer if they are self-insured. Once a worker becomes aware that the injury they have suffered will result in time off work and/or a 11 of 96

12 requirement for medical treatment and they wish to make a claim, they should do so as soon as possible as there is a six month time limit for applying. The time limit may be waived by the insurer in certain circumstances. Compensation entitlements of workers Workers are entitled to weekly compensation if they cannot work to their full capacity as a result of a work-related injury and lose wages as a result. The worker may also claim for the reasonable cost of medical and like services directly related to the treatment of their injury. These include treating doctor s accounts, occupational rehabilitation, medical and hospital costs. Weekly benefits are the greater of 85% of a worker s normal weekly earnings (this will include overtime and other benefits if they are paid regularly) or the award, whichever is the greater. After 26 weeks this drops to 75% of normal weekly earning or 70% of Queensland Ordinary Time Earnings (QOTE) whichever is the greater. This rate continues to 104 weeks (2 years) post injury. From 105 weeks to 5 years for workers with a work related impairment of greater than 15% will receive the greater of 65% of their normal weekly earnings or 60% of QOTE. Partial incapacity If a worker is totally unfit for work they will receive total incapacity payments from the insurer as described above. Often, workers have some capacity for work (partial capacity) as shown on their medical certificate. Employers have an obligation to provide suitable duties for the worker and pay the worker for hours worked on suitable duties. The insurer will compensate the worker for the hours they are unable to work and for the resulting lost earnings. 12 of 96

13 Other benefits Impairment benefits Injured workers may be entitled to a lump sum for injuries that result in a permanent impairment. This is in addition to weekly benefits and medical and treatment expenses. Common law or damages In certain circumstances where a worker has suffered a serious injury and employer negligence is proved, the worker may be entitled to a common law or damages payment. Death benefits Dependents of workers who die as a result of a work related injury may be entitled to compensation. Ambulance and travel costs Workers may be entitled to certain travel costs and are entitled to emergency ambulance transportation. Weekly payment of compensation stops: When the incapacity due to the injury stops (even if the worker has not returned to their job) If the worker receives a lump sum offer If the maximum amount of compensation payable has been reached If weekly payments have been received for five years. Workers compensation legislation Queensland workers compensation scheme legislation The main provisions and intentions of the Queensland worker s compensation scheme are outlined in the: Workers Compensation and Rehabilitation Act 2003 and The Workers Compensation and Rehabilitation Regulation 2003 as amended. There are currently no codes of practice relating to the Queensland Workers Compensation Scheme. The Workers Compensation and Rehabilitation Act 2003 sets up a workers compensation scheme for Queensland that pays benefits to workers who injure themselves at work. Benefits may also be payable to dependents of injured workers in the case of fatal claims. The scheme encourages improved health and safety performance by employers. The intention of the scheme is to maintain a balance between fair and appropriate benefits for injured workers, or dependants and others, and ensuring reasonable costs for employers. The objectives of the scheme are to ensure that: 1. Injured workers or dependents are treated fairly by insurers. 2. Employers interests are protected in relation to claims for damages for workers injuries. 3. Employers and injured workers participate in effective return to work programs. 13 of 96

14 4. Workers or prospective workers are not prejudiced in employment because of a workplace injury. 5. There is provision for flexible insurance arrangements suited to the particular needs of industry. Other relevant legislation In carrying out the role of the rehabilitation and return to work coordinator you may need to consider other legislation as shown below. Workplace Health and Safety Act 1995 The Workplace Health and Safety Act 1995 (and amendments) places obligations on certain parties in relation to ensuring that the health and safety of workers and other persons at work is maintained. Disability Discrimination Act (1992) The Disability Discrimination Act (1992), or DDA, is Commonwealth legislation that makes discrimination on the grounds of disability unlawful in a wide range of situations. The DDA requires that people who have a disability be given equal opportunity to participate in the full range of economic, social, cultural and political activities that occur across society. Queensland Anti-discrimination Act 1991 Disability (or impairment) discrimination is simply treating someone unfairly or badly because of their impairment. The Anti-Discrimination Act 1991 promotes fairness for everyone by protecting them against discrimination, sexual harassment and vilification in some parts of their lives. Queensland Industrial Relations Act 1999 The Industrial Relations Act 1999 covers rights and obligations regarding: rates of pay leave entitlements (including public holidays) termination and resignation from work discrimination taxation and superannuation employment records Refer to the Industrial Relations Act 1999, Industrial Relations Regulations 2000 and the Industrial Relations (Tribunal) Rules 2000 for further information. Workplace Relations Act 1996 The Workplace Relations Act 1996 is Commonwealth legislation that aims to give the primary responsibility for industrial relations and agreement-making to employers and employees at the enterprise and workplace levels. It focuses on providing: a safety net of fair and enforceable minimum wages and conditions ensuring freedom of association avoiding discrimination assisting employees to balance their work and family responsibilities effectively The Queensland Freedom of Information Act 1992 (the FOI Act) The FOI Act applies to Queensland Ministers, Queensland Government departments, local councils and most semi-government agencies and statutory authorities. It does not apply to documents held by the Commonwealth Government or by other State Governments. The Act: gives you a right to apply for access to documents held by government agencies 14 of 96

15 gives you a right to apply for amendment of personal information about you held by government agencies requires government agencies to publish information about their structure, what they do and what documents they hold. The Queensland FOI Act is designed to extend as far as possible the right of access to information held by the Queensland Government. Through FOI, every person has a legally enforceable right to documents of agencies and official documents of Ministers, subject to certain exemptions and exclusions in the FOI Act. Other Acts In addition to the above Acts, other legislation that may impact on workers compensation and workplace rehabilitation includes the Commonwealth Privacy Act 1988 and Commonwealth Information Privacy Principles. The privacy principles set out principles for access to, collection, use, storage, and handling of personal information. Extracts from workers compensation legislation in Queensland The relevant legislation for rehabilitation and return to work coordinators coordinating return to work for workers injured in Queensland is: 1. The Workers Compensation and Rehabilitation Act 2003 and, 2. The Workers Compensation and Rehabilitation Regulation Below are extracts from the legislation of sections relevant to rehabilitation and return to work coordinators. Workers Compensation and Rehabilitation Act 2003 Objects of the Act Section 5 - Workers compensation scheme (1) This Act establishes a workers compensation scheme for Queensland (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker s injury results in the worker s death, for persons other than workers, and for other benefits; and (b) encouraging improved health and safety performance by employers. (2) The main provisions of the scheme provide the following for injuries sustained by workers in their employment (a) compensation; (b) regulation of access to damages; (c) employers liability for compensation; (d) employers obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer; (e) management of compensation claims by insurers; (f) injury management, emphasising rehabilitation of workers particularly for return to work; (g) procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals; 15 of 96

16 (h) rights of review of, and appeal against, decisions made under this Act. (4) It is intended that the scheme should (a) maintain a balance between (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable cost levels for employers; and (b) ensure that injured workers or dependants are treated fairly by insurers; and (c) provide for the protection of employers interests in relation to claims for damages for workers injuries; and (d) provide for employers and injured workers to participate in effective return to work programs; and (e) provide for workers or prospective workers not to be prejudiced in employment because they have sustained injury to which this Act or a former Act applies; and (f) provide for flexible insurance arrangements suited to the particular needs of industry. 31 Meaning of event (1) An event is anything that results in injury, including a latent onset injury, to a worker. (2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker. (3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period. (4) If multiple injuries result from an event, they are taken to have happened in 1 event. 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; 16 of 96

17 (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances (a) reasonable management action taken in a reasonable way by the employer in connection with the worker s employment; (b) the worker s expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker s application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker s employment 34 Injury while at or after worker attends place of employment 1) An injury to a worker is taken to arise out of, or in the course of, the worker s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker s employment (a) while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer s trade or business; or (b) while the worker is away from the place of employment in the course of the worker s employment; or (c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess. 2) For subsection (1)(c), employment need not be a significant contributing factor to the injury. 35 Other circumstances (1) An injury to a worker is also taken to arise out of, or in the course of, the worker s employment if the event happens while the worker (a) is on a journey between the worker s home and place of employment; or (b) is on a journey between the worker s home or place of employment and a trade, technical or other training school 17 of 96

18 (i) that the worker is required under the terms of the worker s employment to attend; or (ii) that the employer expects the worker to attend; or (c) for an existing injury for which compensation is payable to the worker is on a journey between the worker s home or place of employment and a place (i) to obtain medical or hospital advice, attention or treatment; or (ii) to undertake rehabilitation; or (iii) to submit to examination by a registered person under a provision of this Act or to a requirement under this Act; or (iv) to receive payment of compensation; or (d) is on a journey between the worker s place of employment with 1 employer and the worker s place of employment with another employer; or (e) is attending a school mentioned in paragraph (b) or a place mentioned in paragraph (c). (2) For subsection (1), employment need not be a significant contributing factor to the injury. (3) For subsection (1), a journey from or to a worker s home starts or ends at the boundary of the land on which the home is situated. (4) In this section home, of a worker, means the worker s usual place of residence, and includes a place where the worker (a) temporarily resided before starting a journey mentioned in this section; or (b) intended to temporarily reside after ending a journey mentioned in this section. 37 Meaning of impairment An impairment, from injury, is a loss of, or loss of efficient use of, any part of a worker s body. 38 Meaning of permanent impairment A permanent impairment, from injury, is an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment. Section 40 Meaning of rehabilitation (1) Rehabilitation, of a worker, is a process designed to (a) ensure the worker s earliest possible return to work; or (b) maximise the worker s independent functioning. (2) Rehabilitation includes (a) necessary and reasonable (i) suitable duties programs; or (ii) services provided by a registered person; or (iii) services approved by an insurer; or (b) the provision of necessary and reasonable aids or equipment to the worker. (3) The purpose of rehabilitation is (a) to return the worker to the worker s pre-injury duties; or (b) if it is not feasible to return the worker to the worker s pre-injury duties to return the worker, either temporarily or permanently, to other suitable duties with the worker s preinjury employer; or 18 of 96

19 (c) if paragraph (b) is not feasible to return the worker, either temporarily or permanently, to other suitable duties with another employer; or (d) if paragraphs (a), (b) and (c) are not feasible to maximise the worker s independent functioning. Section 41 Meaning of rehabilitation and return to work coordinator A rehabilitation and return to work coordinator is a person who (a) has met the criteria for a rehabilitation and return to work coordinator prescribed under a regulation; and (b) has the functions prescribed under a regulation. Section 42 Meaning of suitable duties Suitable duties, in relation to a worker, are work duties for which the worker is suited having regard to the following matters (a) the nature of the worker s incapacity and pre-injury employment; (b) relevant medical information; (c) the rehabilitation and return to work plan for the worker; (d) the provisions of the employer s workplace rehabilitation policy and procedures; (e) the worker s age, education, skills and work experience; (f) if duties are available at a location (the other location) other than the location in which the worker was injured whether it is reasonable to expect the worker to attend the other location; (g) any other relevant matters. Section 43 Meaning of workplace rehabilitation Workplace rehabilitation is a system of rehabilitation accredited by the Authority that is initiated or managed by an employer. Section 44 Meaning of workplace rehabilitation policy and procedures Workplace rehabilitation policy and procedures are written policy and procedures for workplace rehabilitation that are accredited by the Authority. Section 45 Meaning of accredited workplace An accredited workplace is a workplace that has workplace rehabilitation policy and procedures. Employer s obligations Section 46 Employer s legal liability (1) An employer is legally liable for compensation for injury sustained by a worker employed by the employer. Section 133 Employer s duty to report injury (1) An employer, other than an employer who is a self-insurer, whose worker sustains an injury for which compensation may be payable must complete a report in the approved form and send it to the nearest office of WorkCover. (2) The employer must send the report immediately after the first of the following happens (a) the employer knows the injury has been sustained; 19 of 96

20 (b) the worker reports the injury to the employer; (c) the employer receives WorkCover s written request for a report. (3) If an employer fails to comply with subsection (1) within 8 business days after any of the circumstances mentioned in subsection (2), the employer commits an offence, unless the employer has a reasonable excuse. Maximum penalty 50 penalty units. Section 133A Employer s duty to tell WorkCover if worker asks for, or employer makes, a payment (1) An employer, other than a self-insurer, must give WorkCover written notice in the approved form if (a) a worker asks the employer for compensation for an injury sustained by the worker; or (b) the employer pays the worker an amount, either in compensation or instead of compensation, that is payable by the employer or WorkCover under the Act for an injury sustained by the worker. (2) If the employer fails to comply with subsection (1) within 8 business days after the request or payment is made, the employer commits an offence, unless the employer has a reasonable excuse. Maximum penalty 50 penalty units. Section 144 When employer must pay worker for day of injury (1) For the day the worker stops work because of the injury, the worker is entitled to compensation under this part for the injury. (1A) Subsection (1) applies despite anything in an industrial instrument or contract of employment applying to the worker. Employer s obligation for rehabilitation Section 226 Employer s obligation to appoint rehabilitation and return to work coordinator (1) An employer must appoint a rehabilitation and return to work coordinator if the employer meets criteria prescribed under a regulation. (2) The rehabilitation and return to work coordinator must be in Queensland and be employed by the employer under a contract (regardless of whether the contract is a contract of service). Maximum penalty 50 penalty units. (4) A rehabilitation and return to work coordinator, who is employed under a contract of service at the workplace, is not civilly liable for an act done, or an omission made, in giving effect to the workplace rehabilitation policy and procedures of an employer. (5) If subsection (4) prevents a civil liability attaching to a rehabilitation and return to work coordinator, the liability attaches instead to the employer. Section 227 Employer s obligation to have workplace rehabilitation policy and procedures (1) This section applies if an employer meets criteria prescribed under a regulation. (2) The employer must have workplace rehabilitation policy and procedures. Maximum penalty 50 penalty units. 20 of 96

21 (4) The employer must review the employer s workplace rehabilitation policy and procedures at least every 3 years and must comply with reporting requirements as prescribed under a regulation. Section 228 Employer s obligation to assist or provide rehabilitation (1) The employer of a worker who has sustained an injury must take all reasonable steps to assist or provide the worker with rehabilitation for the period for which the worker is entitled to compensation. (2) The rehabilitation must be of a suitable standard as prescribed under a regulation. (3) If an employer, other than a self-insurer, considers it is not practicable to provide the worker with suitable duties, the employer must give WorkCover written evidence that the suitable duties are not practicable. Section 229 Employer s failure in relation to rehabilitation (1) This section applies if an employer, other than a self-insurer, fails to take reasonable steps to assist or provide a worker with rehabilitation. (2) WorkCover may require the employer to pay WorkCover an amount by way of penalty equal to the amount of compensation paid to the worker during the period of non-compliance by the employer. (3) WorkCover may recover the amount from the employer (a) as a debt; or (b) as an addition to a premium payable by the employer. (4) The employer may apply to WorkCover in writing to waive or reduce the penalty because of extenuating circumstances. (5) The application must specify the extenuating circumstances and the reasons the penalty should be waived or reduced in the particular case. (6) WorkCover must consider the application and may (a) waive or reduce the penalty; or (b) refuse to waive or reduce the penalty. (7) If the employer is dissatisfied with WorkCover s decision, the employer may have the decision reviewed under chapter 13. Section 572A Access to particular documents for employment purposes prohibited (1) A person must not, for a purpose relating to the employment of a worker by the person or another person (a) obtain or attempt to obtain a workers compensation document about the worker; or (b) use or attempt to use a workers compensation document about the worker. Maximum penalty 100 penalty units. (2) However, subsection (1) does not apply to a workers compensation document relating to the worker s capacity to work if the document is necessary to secure the worker s rehabilitation or early return to work under chapter of 96

22 (3) In this section employment means any process for selecting a person for employment or for deciding whether the employment of a person is to continue. worker means a person who is or was a claimant or worker for any provision of this Act or a former Act. workers compensation document, about a worker, means any document relating to the worker s application for compensation or claim for damages under this Act or a former Act. Injured worker obligations Section 135 Examination by registered person (1) An insurer may at any time require a claimant or a worker to submit to a personal examination by a registered person at a place reasonably convenient for the claimant or worker. (2) Subsection (3) applies if the claimant or worker (a) fails, without reasonable excuse, to attend for the examination at the time and place advised by the insurer; or (b) having attended, refuses to be examined by the registered person; or (c) obstructs, or attempts to obstruct, the examination. (3) Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination. Section 136 Worker must notify return to work or engagement in a calling (1) A worker receiving compensation for an injury must give written notice within 10 business days of the worker s (a) return to work; or (b) engagement in a calling. Maximum penalty 50 penalty units. (2) The notice must be given to the insurer. (3) The notice may be a certificate in the approved form of a doctor stating the worker s capacity for work. Part 5 Worker s mitigation and rehabilitation obligations Section 230 Application of pt 5 This part applies to a worker who has sustained an injury and is required to participate in rehabilitation. Section 231 Worker must mitigate loss (1) The common law duty of mitigation of loss applies to the worker. (2) The worker s duty may be discharged by participating in rehabilitation. (3) The worker s duty under this section is in addition to any duty the worker may have under section of 96

23 Section 232 Worker must participate in rehabilitation (1) The worker must satisfactorily participate in rehabilitation (a) as soon as practicable after the injury is sustained; and (b) for the period for which the worker is entitled to compensation. (2) If the worker fails or refuses to participate in rehabilitation without reasonable excuse, the insurer may, by written notice given to the worker, suspend the worker s entitlement to compensation until the worker satisfactorily participates in rehabilitation. (3) If the insurer suspends the worker s entitlement to compensation, the worker may have the decision reviewed under chapter 13 of the Act. Protection for injured workers Section 232A Definitions for pt 6 In this part dismiss an injured worker includes a situation where (a) an unreasonable employment condition that is designed to make the worker leave employment is imposed on the worker; and (b) the worker leaves the employment. former position of an injured worker means, at the worker s option (a) the position from which the injured worker was dismissed; or (b) if the worker was transferred to a less advantageous position before dismissal the position held by the worker when the worker became unfit for employment. injured worker means a worker who sustains an injury. injury means an injury for which compensation is payable. Section 232B Dismissal of injured worker only after 12 months (1) Within 12 months after a worker sustains an injury, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury. Maximum penalty 40 penalty units. Section 232C Replacement for injured worker (1) This section applies if the employer wants to employ a replacement worker while an injured worker is not fit for employment in a position because of the injury. (2) The employer must, before a replacement worker starts employment, give the replacement worker a written notice informing the replacement worker of (a) the temporary nature of the employment; and (b) the injured worker s right to return to work. (3) In this section replacement worker means (a) a person who is specifically employed because an injured worker is not fit for employment in a position because of the injury; or 23 of 96

24 (b) a person replacing a worker who is temporarily promoted or transferred to replace the injured worker. Section 232D Reinstatement of injured worker (1) This section applies if an injured worker is dismissed because the worker is not fit for employment in a position because of the injury. (2) The worker may apply to the employer, within 12 months after the injury, for reinstatement to the worker s former position. (3) The worker must give the employer a doctor s certificate that certifies the worker is fit for employment in the former position. Section 232G Preservation of worker s rights (1) This part does not affect another right of a dismissed worker under an Act or law. (2) This part can not be affected by a contract or agreement. Section 510 Power of tribunal to examine a worker On reference to a tribunal about a non-fatal injury, the tribunal- (a) may make a personal examination of the worker at any time; or (b) may arrange for the examination to be made by a doctor nominated by it. Access to documents and information Section 572A Access to particular documents for employment purposes prohibited (1) A person must not, for a purpose relating to the employment of a worker by the person or another person (a) obtain or attempt to obtain a workers compensation document about the worker; or (b) use or attempt to use a workers compensation document about the worker. Maximum penalty 100 penalty units. (2) However, subsection (1) does not apply to a workers compensation document relating to the worker s capacity to work if the document is necessary to secure the worker s rehabilitation or early return to work under chapter (3) In this section employment means any process for selecting a person for employment or for deciding whether the employment of a person is to continue. worker means a person who is or was a claimant or worker for any provision of this Act or a former Act. workers compensation document, about a worker, means any document relating to the worker s application for compensation or claim for damages under this Act or a former Act. Schedule 6 Dictionary Under the Act certain words and phrases have specific meanings. The definition of certain words and phrases under the Act is shown below. accredited workplace see section of 96

25 aggravation includes acceleration calling means any activity ordinarily giving rise to receipt of remuneration or reward including self employment or the performance of an occupation, trade, profession, or carrying on of a business, whether or not the person performing the activity received remuneration. doctor means a registered medical practitioner. employer an employer is a person- (a) for whom an individual works under a contract of service; or (b) who enters into a contract with an individual mentioned in Schedule 2, part 1. medical treatment means (a) treatment by a doctor, dentist, physiotherapist, occupational therapist, psychologist, chiropractor, osteopath, podiatrist or speech pathologist; or (b) assessment for industrial deafness by an audiologist; or (c) the provision of diagnostic procedures or skiagrams; or (d) the provision of nursing, medicines, medical or surgical supplies, curative apparatus, crutches or other assistive devices. non-reviewable decision a decision by an insurer under chapter 3 (compensation) or chapter 4 (injury management) that is not mentioned in section 540. (Matters of injury management are not usually a reviewable decision) normal weekly earnings are the normal weekly earnings of a worker from employment (continuous or intermittent) had by the worker in the 12 months immediately before the day the worker sustained an injury. registered means (a) in relation to a person mentioned in the definition medical treatment, paragraph (a) who is held out as providing, or qualified to provide, medical treatment registered under the law of the place where the medical treatment is provided as a person lawfully entitled to provide the medical treatment in that place; or (b) in relation to an audiologist certified by the Audiological Society of Australia. registered person means a registered person of a description mentioned in the definition medical treatment. rehabilitation and return to work plan means a written plan outlining the rehabilitation objectives and the steps required to achieve the objectives. It is the responsibility of the insurer to develop and coordinate the overall rehabilitation and return to work plan workplace means a place where work is, is to be, or is likely to be, performed by a worker or employer and is a place (a) that is for the time being occupied by the employer or under the control or direction of the worker s employer; or (b) where the worker is under the control or direction of the worker s employer. workplace rehabilitation see section 43. workplace rehabilitation policy and procedures see section of 96